Citation Nr: 1212130
Decision Date: 04/03/12 Archive Date: 04/11/12
DOCKET NO. 09-35 413 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUES
1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for cold injury of the feet.
2. Entitlement to service connection for bilateral foot neuropathy, to include as secondary to radiation treatment of the feet.
3. Entitlement to service connection for bilateral tunnel tarsal syndrome, to include as secondary to service-connected fungal infection of the feet with left foot residuals.
4. Entitlement to a compensable evaluation for fungal infection of the feet with left foot residuals.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Anthony M. Flamini, Counsel
INTRODUCTION
The Veteran served on active duty from August 1951 to April 1953.
This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
In March 2012, the Veteran testified at a videoconference hearing before the undersigned.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The issues of entitlement to service connection for cold injury of the feet, bilateral foot neuropathy, and bilateral tarsal tunnel syndrome, as well as the issue of entitlement to a compensable evaluation for fungal infection of the feet with left foot residuals, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In a June 2004 Board decision, service connection for residuals of cold injury of the feet was denied.
2. Evidence obtained since the June 2004 Board decision is not cumulative of previously considered evidence, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for residuals of cold injury of the feet.
CONCLUSION OF LAW
New and material evidence has been received since the June 2004 Board decision denying entitlement to service connection for residuals of cold injury to the feet; accordingly, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and to assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim.
Inasmuch as the determination below constitutes a full grant of that portion of the claim that is being addressed, the need to discuss VA's efforts to comply with the VCAA, its implementing regulations, and the interpretive jurisprudence at this stage, is obviated. The reopened claim is further addressed in the remand appended to this decision.
In general, decisions of the RO or the Board that are not appealed in the prescribed time period are final. See 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Knightly v. Brown, 6 Vet. App. 200 (1994). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996).
For claims filed on or after August 29, 2001, such as this claim, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
New and material evidence received prior to the expiration of the appeal period or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b).
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. See Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992).
Regardless of the RO's action regarding reopening the appellant's claim, the Board must independently address the issue of reopening a previously denied claim. That is, whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board does not have jurisdiction to review the claim on a de novo basis in the absence of a finding that new and material evidence has been submitted); see also Barnett v. Brown, 83 F.3d 1380 (1996).
Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303.
Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).
The nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999).
It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By "reasonable doubt" is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. If the threshold burden of submitting new and material evidence to reopen the finally disallowed claim is not met, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).
Here, in a June 2004 Board decision, the Board denied the Veteran's claim for entitlement to service connection for residuals of cold injury of the feet on the basis that there was no competent evidence of cold injury residuals of the bilateral feet. The Veteran filed an application to reopen the claim in October 2007.
The relevant evidence considered at the time of the June 2004 Board decision included service treatment records showing treatment for hyperhydrosis and dermatophytosis of the bilateral feet; VA treatment records dated from March 1998 to August 2003; the report of an April 1956 VA examination; the report of a September 2002 VA skin diseases examination; the report of a September 2002 VA audiological examination; and the report of a March 2003 VA audiological examination.
The pertinent evidence received following the June 2004 Board decision includes additional VA treatment records dated from January 2007 to September 2011. These records listed neuropathy, tarsal tunnel syndrome, and foot pain among his active problems.
Also associated with the claims file since the June 2004 Board denial are private treatment records dated in June 2007 diagnosing burning feet bilaterally, questionable poly-peripheral neuropathy, bunion deformity, and mildly decreased pedal pulses. In addition, private treatment records dated in August 2007 diagnosed the Veteran as having tarsal tunnel syndrome.
The report of a June 2008 VA peripheral nerves examination indicated that the Veteran suffered from bilateral plantar paresthesias for 56 years, with reduced left ankle reflex. However, the examiner was unable to determine whether the Veteran's tarsal tunnel syndrome was secondary to his service-connected fungal infection without resort to mere speculation.
At his March 2012 Board videoconference hearing, the Veteran testified that he suffered from frostbite while serving about the USS Endicott (DMS-35) off the shores of North Vietnam. He indicated that he was outfitted in leather shoes and outdated foul-weather gear while his feet were immersed in salt-water slush ice for 3 to 4 hours at a time while performing deck duties. He indicated that his feet began to turn a bluish hue and exhibit a dull pain, and that he was treated with topical creams and Epsom salts before eventually being subjected to radiation treatments at Naval Base Coronado in San Diego, California.
With these considerations, the Board must now review all of the evidence which has been submitted by the Veteran or otherwise associated with the claims file since the last final decision in June 2004. At this stage, the credibility of new evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The Board finds that the record contains additional evidence of service incurrence that is not cumulative and redundant of the Veteran's contentions regarding service incurrence already of record. See 38 C.F.R. § 3.156(a).
The VA treatment records and private treatment records meet this burden of proof because they have not been previously considered and tend to support the Veteran's claim that he has a current disorder of the bilateral feet that may be related to cold exposure during his period of active service. The Board reiterates that the claim was initially denied in June 2004 on the basis that there was no competent evidence of cold injury residuals of the bilateral feet. The evidence received since the June 2004 denial, however, shows that the Veteran has been diagnosed with several disorders of the bilateral feet that may be due to cold exposure during his period of active duty service, to include neuropathy, decreased pedal pulses, tarsal tunnel syndrome, and burning pain.
When considered with the other relevant evidence of record, the Board determines that the newly submitted evidence raises a reasonable possibility of substantiating the claim for service connection for cold injury of the bilateral feet. See 38 C.F.R. § 3.156; Moray v. Brown, 5 Vet. App. 211, 214 (1993). Thus, new and material evidence has been received since the June 2004 Board decision.
Accordingly, the claim for service connection for cold injury of the bilateral feet is reopened. However, as explained in the Remand portion of this document, additional development is necessary before the Board can address the merits of the Veteran's reopened claim. See 38 C.F.R. § 3.159(c).
ORDER
As new and material evidence has been received, the claim for service connection for cold injury of the bilateral feet is reopened; the appeal is granted to this extent only.
REMAND
Although new and material evidence has been received and the claim for service connection for cold injury of the bilateral feet has been reopened, the Board finds that additional development must be conducted before it can adjudicate the claim on the merits.
The Veteran also seeks entitlement to service connection for bilateral foot neuropathy and bilateral tunnel tarsal syndrome, which may be manifestations of or secondary to residuals of a cold injury. The Veteran has maintained that his bilateral foot neuropathy developed secondary to radiation treatments he received in service to treat his cold injuries at Naval Base Coronado in San Diego, California. After these treatments, he has alleged that the bottoms of his feet exhibited a burning sensation. A December 1952 service treatment note indicated that the Veteran needed "a dermatologist with possible irradiation is indicated" while stationed in Long Beach, California. The next day, the Veteran was transferred to the U.S. Naval Hospital at Naval Base Coronado in San Diego, California, where it was noted that he suffered from a marked sogginess and fissuring of the toe webs on both feet as well as marked cellulitis of the surrounding areas. Alternatively, the Veteran claims that his current bilateral foot neuropathy is a direct result of the alleged in-service cold exposure.
The Veteran's service personnel records show that he was stationed aboard the USS Endicott (DMS-35) from March 1952 to December 1952 in the Korean War Zone. As such, exposure to cold is conceded.
As mentioned above, a June 2007 evaluation by a private vascular surgeon diagnosed the Veteran with burning feet bilaterally, questionable poly-peripheral neuropathy, and mildly decreased pedal pulses. In addition, in August 2007, a private foot and ankle specialist diagnosed the Veteran as having tarsal tunnel syndrome. The specialist indicated that electrodiagnostic testing was consistent with the slowing of bilateral medial and lateral plantar motor nerves across the tarsal tunnels, and that there was also slowing of bilateral medial and lateral plantar sensory nerves across the segment from proximal to the medial ankle to the mid-plantar foot. The specialist also noted that the Veteran had a history of radiation therapy treatment for bilateral foot problems in approximately 1952 or 1953.
The Veteran was afforded a VA peripheral nerves examination in June 2008, at which time he was diagnosed as having bilateral plantar paresthesias for 56 years, with reduced left ankle reflex, although the examiner indicated that he could not opine as to whether the Veteran's tarsal tunnel syndrome was due to his service-connected fungal infection without resorting to speculation.
A review of the June 2008 VA opinion reveals that it is inadequate upon which to base an appellate decision. Specifically, although the June 2008 examiner concluded that he could not determine whether the Veteran's tarsal tunnel syndrome was due to his service-connected fungal infection without resort to speculation, the examiner did not explain the basis for the opinion that such a conclusion would require speculation. Moreover, the examiner failed to provide an etiological opinion as to the diagnosed bilateral plantar paresthesias. In light of the above, the Board finds that the June 2008 opinion is inadequate upon which to base an appellate decision, and a new VA opinion must be provided which addresses the likely etiology of all of the Veteran's diagnosed foot disorders, to include whether any of these disorders are related to service or to any of the Veteran's service-connected disabilities, and furnishing a complete and thorough explanation for all opinions reached. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). The opinion provided by the VA examiner must also be based on a thorough review of the Veteran's claims file.
The Veteran also seeks entitlement to a compensable evaluation for his service-connected fungal infection of the bilateral feet with left foot residuals. The Veteran was afforded his most recent VA skin diseases examination in October 2010, at which time he was diagnosed with dermatophytosis of the bilateral feet. Upon examination, the skin on his bilateral feet were blotchy and red, with scaly texture and excessive sweating during examination. His skin thickness was normal, although his skin temperature was cooler than normal. A fungal infection was present, and the Veteran also exhibited onychomycosis of the toenails.
However, at the Veteran's March 2012 Board videoconference hearing, his representative testified that his fungal infection periodically flares up, and that the Veteran's fungal disorder "was not in a flare-up stage" at the time of the October 2010 VA skin diseases examination. Accordingly, the Board finds that the October 2010 VA examination is insufficient to allow a proper evaluation of the current severity of the Veteran's service-connected fungal infection of the bilateral feet. See Ardison v. Brown, 2 Vet. App. 405 (1994) (holding that in evaluating disabilities that are subject to periodic exacerbations or outbreaks, an examination should be scheduled during such an exacerbation); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). At his March 2012 Board videoconference hearing, the Veteran testified that the fungal infection worsens in the winter months. Thus, an additional VA examination is required to determine the severity of the Veteran's fungal infection of the bilateral feet while it is active. The unusual scheduling requirements for a new examination should not be insurmountable so long as sufficient deference is given to allow the examination to be scheduled at short notice.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.)
1. The RO should attempt to obtain updated VA treatment records from the Hickory Community Based Outpatient Clinic in Hickory, North Carolina, dated from September 2011 to the present. If such efforts prove unsuccessful, documentation to that effect should be added to the claims files.
2. The RO must then request a new VA examination to determine the probable nature and etiology of any diagnosed foot condition, to include neuropathy, tarsal tunnel syndrome, and plantar paresthesias. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the opinion. Following a review of the service and post-service medical records, to include the June 2007 and August 2007 private treatment records, as well as a physical examination of the Veteran, the examiner must opine as to whether any of the diagnosed foot disorders are related to service or etiologically related to any of the Veteran's service-connected disorders, to include a fungal infection of the bilateral feet.
The VA examiner is asked to express any opinions in terms of whether it is "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood) that any identified disorder had an onset during service, or was otherwise attributable to service or service-connected disability.
A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The report prepared must be typed.
3. The Veteran must also be afforded an appropriate VA examination to determine the severity of his service-connected fungal infection of the bilateral feet. This examination must be scheduled during a period of flare-up of this condition, which is likely to occur at short notice. The examining facility must be fully informed of the unusual requirements in this case and communicate with the Veteran as necessary to maximize the likelihood of performing the examination during a flare-up of the claimed condition. Appropriate instructions must be provided to the Veteran in this regard. The claims file must be made available to and reviewed by the examiner. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner must specifically state the percentage of the exposed areas affected and the percentage of the entire body affected. Any opinion provided must include an explanation of the basis for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. The report must be typed.
4. Thereafter, the issues on appeal should be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs